Dealing with strike action: a practical guide for employers

The news that up to 750,000 public sector workers have agreed to
commence strike action on 30 June 2011 is no surprise to many. The
fifth largest trade union, the Public and Commercial Services Union
has announced that 290,000 of its members intend to strike, which
will affect a wide range of services. The National Union of
Teachers and the Association of Teachers and Lecturers has also
voted for strike action to protect teachers’ pensions. The strike
action will purposely coincide with the other public sector strikes
due to take place on 30 June 2011.

And industrial action will continue to loom large, beyond the
end of this month. With unions threatening industrial action in
response to public sector employers' plans to change employment
contracts, restructure or outsource, employers need to be aware of
their rights and options in relation to strike action: both in
relation to prevention, where possible (via an interim injunction)
and management of the situation, when a strike goes
ahead.

There is no statutory definition of industrial action, but, as
a general guide, any concerted action which is taken in order to
put pressure on an employer is capable of being industrial
action. The term covers the refusal by a group of employees
to do anything (whether or not in breach of contract) as a
bargaining weapon. Like the proverbial elephant, it is a case
of Courts ‘knowing it when they see it’.

However, there are two basic types of industrial action:

a strike, which is an outright stoppage of work; or

other industrial action short of a strike which can include: an
overtime ban; call-out ban; go slow; work to rule; work-in; or
sit-in.

If a trade union instructs its members to take industrial
action it may commit the civil wrong of inducing a breach of
contract. Whether in any particular case it does so will depend on
what it is asking its members to do. An instruction to members not
to attend work will almost certainly be potentially actionable, as
that will amount to a breach of contract on the part of the
employees concerned. That will be the case whether the action
is a short stoppage – say for a day at a time as has been the
pattern in recent London Underground strikes and which seems to be
the approach the public sector unions envisage here – or
open-ended. Action short of a strike may be a breach of
contract – as would be the case in a go-slow or an overtime ban –
or it may not. A work to rule is an example of where the line is
finely drawn: action which takes the form, for example, of taking a
rigid approach to hours by arriving and leaving on the dot would
probably not be a breach of contract. Therefore, even if a
trade union organised such action, the employees concerned are not
in breach of contract, so neither they nor the union have done
anything wrong. Another finely drawn distinction in the
context of action proposed in response to the current cut-backs, is
whether or not the dispute can be said to be with the employer (and
therefore a protected trade dispute) or whether it is a protest
directed at government policy or proposed legislative change, which
may well not be.

Carefully consider whether the notice to the employer of the
intention to ballot complies with the strict legal requirements.
For example, does the notice contain all of the required
information, such as the opening date and numbers and categories of
employees to be balloted? Is this information ‘as accurate as is
reasonably practicable’?

A sample ballot paper must be provided no later than the third
day before the opening day of the ballot. Check that this has been
received, and that the wording on it exactly reflects the
requirements of Trade Union and Labour Relations (Consolidation)
Act 1992 (TULRCA). For example, does the ballot paper:

state the name of the independent scrutineer and the address to
which the ballot paper must be returned

ask if the employee is prepared to take part in the industrial
action (on a ‘yes / no’ basis)

specify who is authorised to call on members to take part in
industrial action

warn employees that participation in the strike may be a breach
of the employee's employment contract; and

does the proposed action correspond with the question asked on
the ballot paper?

There are strict timetables for the balloting steps and these
must be adhered to.

In December 2009, in British Airways plc v UNITE, British Airways
successfully obtained an injunction preventing a 12-day strike
where UNITE had failed to take reasonable steps to establish the
identities of redundant employees who were leaving BA before the
strike and prevent them from voting in the strike ballot. Even
though support for the strike was overwhelming and the numbers of
leavers who were not balloted would not have changed the
result at all, the failure was still fatal to the legality of the
strike.

However, BA were not so fortunate in their more recent attempt
to obtain an injunction to stop a strike: in British Airways plc v Unite the Union in May
2010, the Court of Appeal refused to grant an injunction when Unite
had failed to provide statutory information by direct communication
to all members. The Union had made the information
available by various means, such as posting the statutory
information on a website, by text and by notices in areas used by
the employees concerned. The Court of Appeal said that this was
enough to satisfy the requirement in section 231 of TULRCA that the
union must take such steps as are ‘reasonably necessary’ to ensure
that information regarding the ballot is communicated to
members.

For more information on scrutinising the ballot, please see our
June 2010 article, Summer of discontent

This question is important as it will govern who is the proper
defendant to any potential legal action by an employer. It is also
relevant to the position of the employees themselves (see below,
under ‘what else can employers do in response?’).

If the action has been organised by the trade union and its
members have been balloted then it will almost certainly be
official action. If the formalities have not been complied with and
it appears to be driven by a local official or ‘shop steward’ then,
insofar as any threats have been made, the union may be called upon
to repudiate or disown the action. There are strict requirements on
what it must do in these circumstances and, to the extent these are
not met, the action will be deemed official and the union
itself the proper defendant to any action.

The balloting and notification procedures that must be adhered
to in TULRCA are generally strictly enforced. Where they are
adhered to then the union will be generally immune from
liability. If TULCRA has not been complied with, the main
remedy is to apply to the Court for an interim injunction to
prevent the strike. The injunction will usually be made against the
Trade Union as the person inducing the breach of contract by the
employees concerned, unless the action is unofficial and
repudiated, in which case it is the union official who will be
committing the unlawful act.

There are a number of steps required and factors to
consider.

Prepare a letter before action addressed to the Trade Union.
The letter will set out why you oppose the strike action and why
you feel that there is a legal basis which will persuade the court
to grant an injunction to stop the strike. This is an important
strategic step as it is likely to be the first notice that the
Trade Union will have of your formal opposition to the scheduled
strike action.

Timing will be important. If the result of the ballot is
in favour of strike action then the union must have complied with
its obligations to notify the employer of the outcome and give at
least seven days notice of any call for industrial action, so you
will need to move quickly.

Following an unwillingness to cancel or postpone the strike
action, the next step is to apply to the court via an application
notice.

When filing the application notice at court, you must also file
a witness statement as evidence. The statement should be drafted by
the person best placed to convey the likely impact on the
organisation and who can explain why it is seemingly unlawful. You
will also have to explain why damages for breach of contract are
not enough to compensate you for the loss and harm you sustain. In
industrial action cases, the courts will usually be receptive to
the argument that the disruption to services and in particular the
harm sustained by third parties – patients in the case of action in
the NHS or service users in a local government context – is not
easily capable of being quantified in monetary loss, but it is
still an area you must address.

When the application has been drafted, and the witness evidence
finalised, then the papers should be submitted to court ideally as
soon as possible and at least 3 clear days prior to the
commencement date of the scheduled strike action. If this is not
possible then you may still apply, although the procedures are more
complex and any injunction granted is likely to be only for a short
period, until the matter can be properly heard with all parties
present and time limits observed.

If the application to the court is successful, circulate the
Court Order as soon as possible to the Trade Union so that they are
aware that strike action will now be unlawful if it goes ahead as
planned. However, the timing of the injunction (and even any
threat) is very important. You may not wish to threaten an
injunction while the union has the opportunity to correct the
procedure.

Legal remedies against employees for taking industrial action
are limited: notably, the court cannot order an employee to work or
even to attend the workplace. However, employers may legitimately
withhold all or part of employees' pay if they are in breach of
contract and may also dismiss some or all of them, depending on the
circumstances.

The unfair dismissal rules in this context are complex and
depend on whether the industrial action is ‘unofficial’,
‘official’, or ‘protected’. In brief, employees dismissed
while taking part in unofficial industrial action (i.e. where it is
not authorised or endorsed by a union) cannot normally claim unfair
dismissal, even if the employer is selective about whom it
dismisses. Employees dismissed while taking part in official
industrial action can only claim unfair dismissal if there is
selective treatment (i.e. where the employer selectively dismisses
or re-engages staff) or if the action is protected by virtue of a
lawfully-organised union ballot. Where the industrial
action is ‘protected industrial action’ (i.e. the union has
complied with the balloting and notification requirements) the
rules are more complicated and there are protected periods of time
during which any dismissal would be unfair.

Suppliers, customers and / or service users should be notified,
if they are not already aware of the date via the media. Consider
the potential impact upon them that this industrial action may
have.

In extreme circumstances it may be necessary to close the
business / service for the day. However, if this can be avoided
then a suitable 'skeleton service' should be used. It will also be
necessary to prepare for the risk that some staff may call in sick
that day.

Keep informed of the progress of the strike action. Strict
procedural steps must be followed and may form the basis of a
challenge should they be flouted. Collate evidence where
possible.

Agency staff must not be used to cover the work that would have
been undertaken by employees on strike. It may, however, be
possible to use directly employed temporary staff and / or
outsource service provision to a third party.

Bevan Brittan's industrial action team

Bevan Brittan LLP's specialist industrial action team, has
experience of advising on all aspects of industrial disputes,
including obtaining urgent injunctions to prevent action from
taking place. Please contact a member of the team (contact
details below) for more information.

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.